We do not think that there was any such error or insufficiency in the charge of the judge as would give a reason for setting aside the verdict; although the important consideration that, to entitle the plaintiff to recover, he was bound to snow that the engine was defective, and that the defendant knew, or in the exercise of ordinary care would have known, that it was defective, might perhaps have been more distinctly presented to the jury.
*400But the exception taken to the exclusion of the evidence offered by the defendant is a material one, and, in our opinion well founded. The defect in the engine, which the plaintiff alleged as the cause of his injury, was the insufficiency of the brake to prevent the engine from running off while it was turned on the turn-table. The defendant proposed to show that the person who had charge for him of all the engines on the road had given instructions, before the accident, to the engineers, to have the wheels of their engines “chocked” while turning on the turn-table, and that this accident occurred by failure of some servant of the defendant to obey such instructions. The court ruled the evidence incompetent, as it was not shown that the instruction was given or known to the plaintiff. But proof that the accident which caused the injury to the plaintiff was caused by the neglect of a fellow-servant would have been a defence to the action; and the offer went to that extent. The defects of the engine in the abstract were not the gist of the plaintiff’s complaint ; but its defects at the time and for the service in which the defendant allowed it to be used when it ran on to the plaintiff If it were fit and sufficient for use in the manner in which the defendant then allowed it to be used, its insufficiency for other service, at other times, would not concern the plaintiff. Now it is plain that a machine may be safe and fit for one use, when it is not for another. To put an extreme case, by way of illustration : Suppose the defendant had a worn out engine, unfit for any service, and he had given orders that it should not be run at all; yet some workman had, without his knowledge, undertaken to run it; could the master be held responsible to the fellow-servant? Suppose a car that was not fit to run with steam power was kept for use only when drawn by horses; or an engine which had not the proper appliances for a locomotive was employed solely as a stationary engine; would an unauthorized change of the use make the master liable ? If this engine, when “chocked” upon the turn-table, was absolutely safe against the possibility of running off, so that it needed nc brake at all in that position, and it was not permitted to be turned until the blocking was applied to the wheels, it would *401be a question for the jury whether the want of a brake was the cause of the injury. There is no absolute requirement of law that the injurious action of a locomotive, engine shall be prevented by the specific expedient of a brake. If other sufficient means of safety, equivalent in effect, were supplied, that is all that is necessary; and the jury were to judge of their sufficiency. The fact that the orders to the engineers were not known to the plaintiff would not be decisive, because the question on that part of the case was, whether the engineers were careless, and by their failure to obey instructions the accident occurred.
The evidence which was rejected should therefore have been received, as having a direct tendency to show whether the defendant used such precautions and gave such rules for the use of the engine in the condition in which it was at the time of the accident, as made it then a-proper instrument for the service to which it was to be applied. Exceptions sustained.